As near as I can tell, the precedent set by that suit directly contradicts RIAA vs. Diamond. My read of the situation was that building the database was the infringement, not distributing it. Where's the line between that and ripping CD's you've purchased to play in your Rio or empeg?

I'm going to jump in here and say a bunch of stuff off of the top of my head. I'm no expert, but I have read through the summary text of some of the legalese that both the RIAA and the pro-copying groups have published. I could be wrong, though...

The suit didn't exactly say that building the database was the only infringement. It happens to be the main thing they got 'em on, but the distribution of the songs in the database was illegal as well. It turns out that it's all part of the same law.

Here's how it works:

1) The simple act of copying a piece of copyrighted material is, by law, illegal. The copyright holder can sue the copier for damages, based on the number of instances copied.

2) There are exceptions to number 1. The most important exception for this discussion is called the AHRA, the Audio Home Recording Act. It allows for people at home to make copies of music for personal use only. There are some very specific pieces of wording used in the AHRA which define certain kinds of electronic devices and the implementation of SCMS (copy protection), but for the most part, if it's for personal use, you're free to do more or less whatever you want.

3) When MP3.COM copied those CDs into the database, they were not protected by the AHRA because they are a commercial entity and the copying was not for personal use. The act of offering the songs for download (regardless of the security measures implemented) cinched the definition that the copies were not for personal use and that a copyright infringement was clear. The number of copies that were distributed is how the RIAA can define the monetary damages to be levied against MP3.COM.

In my personal opinion, MP3.COM was stupid for thinking they could get away with it. I say let the RIAA ream 'em for a while.


If that's OK, what's wrong with automating that function in the player, as I described in my first post?

To us techies, there's no difference between having the function automated and having to press a button. But to the lawyers, there is. The operator of the copying device needs to make a conscious decision to begin the copy process.

Imagine if your friend stuck one of his CDs into such a player. Then you'd own a copy of the copyrighted material without having to intervene. I know it sounds legally gray, and it is. But most companies wouldn't want to open that can of worms (although I think I've seen a piece of PC player/ripper software that can do what you described). For instance, Empeg doesn't offer a piece of ripper software at all. I think it's very shrewd of them to avoid the issue that way.

There's an interesting wrinkle in all of this, and I've mentioned it before in another thread on this BBS. The RIAA hold the position that it's illegal to rip a CD onto your hard drive, period. They claim that the AHRA doesn't protect you for this type of copying. The only copying that the AHRA allows, according to them, is with tapes and minidiscs, or digital media which implements the SCMS copy protection.

But I've looked through the AHRA, and it doesn't say that. At least not in my interpretation of the wording. What it says is that all home copying on any media is legal, and that only certain devices are required to implement SCMS. The act specifically excludes computers and CD-ROM drives from needing to implement SCMS.

I think this is why no home user has ever been sued for ripping CDs. The RIAA would like to spread the propaganda that CD ripping is always illegal in all cases, but it's just hot air at this point. As I understand it, CD ripping only becomes illegal when the rips you make get sent to someone else because that crosses the line past personal use. At that point, it's both the ripping and the distribution which are illegal.

Tony Fabris
Empeg #144